Untitled Texas Attorney General Opinion ( 1970 )

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Dr. J.' W. Edgar Opinion No. U-733
Commissioner of Education
201 East 11th Street Rer Whether the Commissioners
Austin, Texas' 78711 Court of Johnson County may
by its order abolish the
office of County School
Superintendent which Is
otherwise to be filled at
the General Election in
Dear Dr. Edgar: November, 1970.
In connection with your recent request for an opinion of
this office, we have been supplied with the.following.facts:
On November 13, 1897, thd Commissioners Court of Johnson
County passed an order which reads, In Its relevent.portlon, as
follows:
"It is ordered by the Court that the Office
of County School Superintendent of Public Instruct
tlon be and the same is hereby created, and it is
ordered that a county school superintendent be
elected at each general el$ctlon hereafter the
making of this order ..~. .
This order Is recorded In Book 5, page 133, of the Minutes of the
Court.
You have further advised us that on July.13, 1970, the
Commlssioners Court adopted the following resolution:
"BE IT RESOLVEDthat the office of County
School Superintendent of Johnson County, Texas,
be and the same is hereby abolished as recommended
by the Colrt on February 2, 1970, effective December
31, 1970.
This resolution is recorded in volume 15, page 514, of the Minutes of
the Court.
We have also been furnished a copy of a resolution of the
Johnson County School Board adopted on September 25, 1970, in favor
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Dr. J. W. Edgar, page 2 (M-733)
of abolishing the office of County Superintendent as of December 31,
1970. In this connection, you have advised us that under normal
procedures the office of County Superintendent of Johnson County
would be filled at the general election In November, 1970.
Records at hand furnished by the Texas Education Agency
indicate that the scholastic population of Johnson County for the
year 1970-71 Is in excess of 10,000, and that the scholastic pop-
ulation of that county has been in excess of 3,000 at all times
since 1923-24. We do not have at hand records going back’ far enough
to show at what time the scholastic population first exceeded 3,000.
You have requested our opinion on the following questions:
‘The authority of the Commissioners Court of
Johnson County, if any, to abolish the office of
elective County Superintendent in Johnson County.”
By supplementary letter you have requested our opinion
upon the following additional questlon#
“Where the county school board also goes on
record as favoring the abolishment of office of
elective county school superintendent, effective
at the end of its present term (December 31, X970),
and the county judge agrees to serve thereafter as
an ex officio county superintendent without pay,
may the county Judge legally hold the position
and/or serve in the capacity of county superintendent,
ex officio or- otherwise;~ under the circumstances and
laws lnvolved herein. ”
We are of the opinion that the Commissioners Court of
Johnson County is without authority to abolish the elective office
of County Superintendent of Johnson County. Statutes enacted in
1887 and 1889 granting to the commissioners court In each county
the power to create and the power to abolish the office were not
included in the 1925 revlslon.
The creation and abolishment of the office is presently
governed by a line of statutes beginning with Section 36, Chapter
124, page 263, Acts of the 29th Legislature, Regular Session, 1905.
Under that statute the voters of each county , at an election called
pursuant to a petition to determine the matters, elected whether
the office would be created in that county. The statute also made
provision for abolishing the office.
Section 1, Chapter 111, page 210, Acts of the 30th Legis-
lature, 1907, amended the 1905 statute and made it mandatory that
the commissioners court of every county In the state having three
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Dr. J. W. Edgar, page 3 (M-733)
thousand scholastic population should provide for the ,electlon
of a County Superintendent of Public Instruction at each general
election, and provided that immediately after passage of the Act
the court should appoint a person to serve In such office until a
superintendent was elected and qualified. This statute provided
for a two year term of office. No provision for abolishing the
office remained in the statute under this amendment.
The substance of the above statutes was codified as
Article 2688, Revised Civil Statutes of Texas, 1925, with the
added provision that:
"In every county that shall attain three
thousand scholastic population or more, the com-
missioners court shall appoint such superintendent
who shall perform the duties of such office until
the election and qualification of his successor."
Under Section 1, Chapter 357, page 849, Acts of the 42nd
Legislature, Regular Session, 1931, Article 2688 was amended by the
addition of a proviso relating to the appointment of a County Superln-
tendent In counties having a population In excess of 350,000.
Under Section 1, Chapter 21, page 47, Acts of the 42nd
Legislature, 3rd Called Session, 1932, Article 2688 was again amended
to change the term of office to four years, and to add a proviso
reading as follows:
"provided .further``that.~ln counties having a
scholastic population of between three thousand
(3,000) and five thousand (5,000) schalastics,
wherein the office of County Superintendent has
not been created and a Superintendent elected,
then In such counties the question of whether
or not such office Is established shall be de-
termined by the qualified voters of said county
In a special election called therefor by the
Commissioners Court of said countytl upon petition
therefor as hereinabove specified.
Under Section 1, Chapter 208, page 287, Acts of the 49th
Legislature, Regular Session, 1945, Article 2688 was further amended
by providing that once a county established the office of county
superintendent and subsequently the scholastic population was de-
termined to be less than three thousand but more than two thousand,
the office would continue to exist unless abolished by a majority
vote of qualified taxpaying voters. Even If the vote were in favor
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Dr. J. W. Ed.gar, page 4 (M-733)
of abollshlng the office, it could not be abolished until the
expiration of the term of,offlce for which the County Superintendent
was elected or appointed. This amendment also increased to four
years the term of superintendents In counties having a population
In excess of 350,000.
Effective September 1, 1969, Article 2688 was repealed
and the substance of the article was Incorporated in Articles
17.41 through 17.45 of the Texas Education Code. The provisions
which make mandatory the appointment or election of a county super-
intendent are codified In Article 17.41.
In our opinion, although the office of County Superintendent
of Public Instruction was provided for by order of the Commissioners
Court In 1897, before passage of the legislation which is now codified
as Article 17.41 of the Texas Education Code, at.such time as the
scholastic population of Johnson County attained 3,000 in number,
the office thereupon existed by virtue of and under the authority
of the state statute then in effect governing the creation of such
office. After the Act of 1907, state law made mandatory the creation
of the office and the appointment and election of a superintendent.
It was not necessary to call an election on the question of whether
the office should be created, Marfa Independent School District v.
Davis, 102 S.W.2d 283 (Tex.Clv.App. 1937 , error ref.) Th 1 1
St of the enactment of the Act of 1907 was to supersedee EE
county order, in effect to pre-empt the field for state regulation.
In this connection note the following language from In
re Lane, 58 Cal.2d.99, 102, 22 Cal. Reptr., 857, 372 P.2d 897 -
(call.sup. 1962): ~-````
"Whenever the Legislature has seen fit to
adopt, a general sctieme for the regulation of a
particular subject, the entire control over what-
ever phases of the subject are covered by state
legislation ceases so far as local legislation
is concerned." citing Pipoloy v. Benson, 20 Cal.
2d 366, 371, 125 P.2d 482, 147 A.L.R. 515.
From In Re Lane, supra, note also the following:
'In determining whether the Legislature ln-
tended to occupy a particular field to the exclu-
sion of all local regulation we may look to the
'whole purpose and scope of the legislative scheme'
and are not required to find such an,,intent solely
in the language used in the statute. citing Tolman
v. Underhill, 39 Cal. 2d at p. 712(6), 249 P.2-
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Dr. J. W. Edgar, Page 5 (M-733)
p. 283; Abbott v. City of Los Angeles, 53 Cal.
2d 674, b82, 3 Ca,l .Reptr. 158, 349 P.2d 974.
In City of Baltimore v. Sltnlk, 255 A.2d 376, a case
dealing with a city ordinance, the court did not apply the prlnclple
of pre-emptlon under the facts of the case, but did make this state-
ment:
“Labels are ofttimes misleading and one may
easily fall Into error by superimposing a class-
ification upon decisions of a foreign jurisdiction,
however, It would appear that in addition to New
York, that California, Massachusetts, Ohio, Oklahoma,
North Carolina a!d Illinois have followed the pre-
emption concept. citing In re Lane, 58 Cal. 2d
99, 22 Cal. Rptr. 857, 372
Underhill, 39 Ca.2d 708,
v. Benson, 20 Cal. 2d 366,
515 (1942); Dudley v. City of Cambridge, 347 Mass.
543, 199 N.E.2d 208 (1964). Markowski v. Backstrom,
10 Ohio Misc. 139, 226 N.E:2a 825 (1961) - ‘f - El even
Inc. v. McClaln, 422 P.2d 455 (Okl. 19673;
v. City of Winston-Salem, 258 N.C. 244, 128%%d
04 ( gb )* West Chicago Street R.R. Co. v. Ill.,
201 u!~.~5&6, 521, 26 S. Ct. 518, 50 L. Ed. 849 (1906).
Since the office of county superintendent exists solely
under the authority of state law , that office may be abolished only
pursuant to state law.
As pointed out In our historical summary of Article 17.41
and antecedent statutes, there was a provision in the Act of 1905
for abolishing the office, but no such provision appears in any of
the statutes that amended or superseded that Act.
Article 2688e, Vernon's Civil Statutes, enacted as Chapter
292 Acts of the 57th Legislature, Regular Session, 1961, did provide
for abolishing the office of county superintendent. This article was
repealed effective September 1, 1969, and Its substance codified in
Article 17.64 of the Texas Education Code. Under this latter article
the office may be abolished only upon petition of the voters and ap-
proval by a majority of the qualified electors of the proposition that
the office be abolished.
Furthermore, Section (d) of Article 17.64 expressly pro-
vides that an election on the proposltions of abolishing the office
may not be held during the year that a regular election for the
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Dr. J. W. Edgar, page 6 (M-733)
office Is being held. We understand that an election for the
office would normally be held in 1970.
In view of the provisions of Article 17.64, we are of
the opinion that the Commissioners Court of Johnson County Is
without authority to abolish the office of county superintendent
solely on its own order, We are also of the opinion that the
procedure provided in Article 17.64 of the Education Code for
abolishing the office Is the exclusive procedure and that it is
not available during the year 1970.
Your second question would appear to be based on the
premise that with the approval of the school board the commis-
sioners court may abolish the office of county superintendent,
In the light of controlling statutes discussed herein our opinion
Is to the contrary, as the resolution adopted by the school board
can have no legal effect.
Article 17.47 of the Education Code Is derived from
Article 2701, Vernon’s Civil Statutes , and reads as follows:
“In any county in which no county superin-
tendent has been elected or appointed, the county
judge shall be ex officio county superintendent
and shall perform all the duties required of that
0fMce.”
Our attention has beendirected to Article 17.47 of the
Education Code and the pro~positlon urged~-that iffy no- personhas-been
elected to the office of county superintendent for the term beginning
January 1, 1971, the county judge shall be ex-officio county superin-
tendent.
We do not agree with that construction of Article 17.47.
To so construe the article would in effect permit It to provide
an alternative means of abolishing the office, a procedure ex-
plicitly provided for in Article 17.64 of the Code.
In our view Article 17.47 must be read and construed in
the context of the subchapter of which It Is a part. That sub-
chapter provides for creating or continuing the office of county
superintendent under various situatlons. Article 17.47 Is then
Included simply to provide that if the office has never been created
either under mandatory provisions of the chapter or by decision of
the voters after a petition, then, and only then, will the county
judge serve as ex-officio superintendent. Stated in another way,
Article 17.47 is primarily Intended to operate in a county where
the office of county superintendent has not been created and does
not exist.
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Dr. J. W. Edgar, page 7 (M-733)
Article 17.47 is clearly not intended to facilitate
abolishment of the office of county superintendent. The legis-
lature has clearly and explicitly provided for abolishing the
office, and for the county judge assuming the .dutles, in Article
17.64(a) and (b), part of the same subchapter. The Legislature
would not Include Article 17.47 for the same purpose.
Even if the proposition were urged that Article 17.47
was enacted to provide for assumption of the duties of county
superintendent by the county judge at any time there is no in-
cumbent, nevertheless It could not take effect until the abollsh-
ment of the office of county superintendent becomes effective.
Attorney General’s Opinion C-768 (1966). That office has not
been abolished in Johnson County under the governing statutes.
An examination of the legislative history of Article
2701 I from which Article 17.47 of the Code was derived, supports
our view of its function. The forerunner of this statute was first
enacted as Section 42, Chapter 124, page 263, Acts of the 29th
Legislature, Regular Session, 1905.
Section 42 of that statute reads as followsr
“In each county in this State having no school
superintendent the county judge shall be an ex-
officio county superintendent of public instruction,
and shall perform all the duties requlsed of the
county superintendent In this chapter.
In our view the language of this statute Indicates that
it is clearly directed to the situation where a county has never
had a county superintendent , and is not a vehicle to abolish that
office.
This view is’ reinforced by the fact that in Section 36
of the same Act provision is made for abolishing the office by
petitlondxection of the voters. It may be that If that
statutory provision for abolishing the office had been followed
the duties of county superintendent would have devolved upon the
county judge by virtue of Section 42, but again we point out that
in Johnson County the presently authorized statutory procedure for
abolishing the office has not been followed.
The 1907 amendment to the statute of 1905 that provided
for the office of county superlntendent omitted the provision for
abolishing the office that was Included in the 1905 statute. The
Legislature In 1961 apparently felt the need of a statutory procedure
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Dr. J. W. Edgar, page 8 (M-733)
for abolishing the office and provided such a procedure under
Chapter 292, Acts of the 57th Legislature, Regular Session, 1961.
This Act was published as Article 2688e in Vernon's Civil Statutes,
and later codified as Article 17.64 of the Texas Education Code.
This is presently the only means authorized by statute for ab-
olishing the office, and It was not available In Johnson County
In 1970, the regular1 scheduled year for an election to fill the
office. Art. 17.64(df, Tex. Educ. Code.
There are two constitutional provisions which preclude
the County Judge from assuming the duties of county superintendent
as conditions now exist in Johnson County.
The first is Article XVI, Section 40, which prohibits
one person holding or exercising at the same time more than one
civil office of emolument except under certain conditions not
applicable here. The office of County Superintendent continues
to exist In Johnson County, hence the same person may not exercise
the powers of that office while holding the office of County Judge.
Each office Is a Civil Office of emolument and the prohibition
applies even though the person seeking to perform the duties of
both offices rejects corn ensation for one office. Attorney General's
Opinion No. W-109 (1957p.
The other constitutional provision is Article XVI, Section
17. Under that provision all officers within this State shall con-
tinue to perform the duties of their offices until their successors
have been duly qualified. Therefore the incumbent In the office of
county superintendent is charged with performing the duties of that
office until a successor has been lawfully selected and has qualified,
thus precluding the County Judge from assuming those duties.
SUMMARY
The Commissioners Court of Johnson County is
without authority to abolish by Its order the office
of County Superintendent of Johnson County.
The office, even though initially created by an
order of the commissioners court in 1897, now exists
by virtue of and subject to the provisions of Article
17.41 of the Texas Education Code.
The office therefore may be abolished only pur-
suant to Article 17.64 of the Education Code. Set -
tion (d) of that article prohlblts an election to
abolish the office in the same year that the office
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Dr. J. W. Edgar, page 9 (M-733)
is due to be filled at a regular election; hence
the office could not be abolished during the
calendar year 1970, even under the provisions of
Article 17.64.
The resolution of the county school board
favoring abolishing the office has no legal effect
in view of the provisions of the cited statutes.
As long as the office of County Supertitendent
of Johnson County continues to exist, as we have
held that It does at this time, the county judge
may not serve also as county superintendent, ex
officio or otherwise, with or without pay, as this
is precluded by the provisions of Article XVI,
Section 40 of the Constitution of the State of
Texas. The provisions of Article XVI, Section 17,
also preclude the county e from assuming the
duties of the county endent.
I'
Prepared by James S. Swearingen
Assistant Attorney General
APPROVED3
OPINIONCOMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James McCoy
S. J. Aronson
Max Hamilton
Houghton Brownlee
MEADEF. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLAWHITE
First Assistant
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